Thursday, 12 September 2013

But, unsurprisingly, the not guilty verdict in the Michael LeVell trial has led to more calls across the media to introduce anonymity for rape defendants. From Philip Schofield’s tweet to this frankly disturbing Peter Lloyd piece in the Mail, those who believe that those accused of rape should be afforded the same protection as victims of rape are out in force.

The formula is the same. A man’s life has been ‘trashed’ because – in their belief – a woman ‘lied’. His reputation is in ‘tatters’. In this case it’s the reports of drinking and extra-marital affairs that are the problem. The logic goes that if this girl had not made a rape complaint, no one would know about the affairs and therefore all rape defendants should have anonymity.

The hypocrisy of the press in this matter is astounding.

It’s the press that gleefully reveals the embarrassing personal details such as affairs and drinking, and then use the fact that this embarrassing information is out there as a reason to re-open the debate for anonymity for rape defendants. In the run up to the trial I saw gleeful headline after gleeful headline on the tabloids in my corner shop on alcoholism and affairs - the very stories that are now seen as reason to change the law in favour of men accused of rape.

As Glosswatch says in her superb blog, we don’t know what the motivations of his accuser were. But we know what the motives of the press were in reporting his affairs and drinking. And it wasn’t motivated by showing solidarity to the rape complainant, but a prurient delight in celeb bad behaviour.

I’ve said it before and I’ll say it again. It isn’t rape survivors or rape crisis centres of feminists campaigning against violence against women that are ‘dragging a man’s name through the mud’. We just want to encourage victims and survivors to feel safe and supported and for victims and survivors to have access to justice. And part of that involves naming defendants.

Despite the views expressed across the press today, and the increasing results of public polls on the issue, naming rape defendants works in the interests of open justice. It improves justice for victims and survivors. It simply does. The academic research bears it out – with research from Professor Clare McGlynn published in the Criminal Law Review making a comprehensive case for why naming defendants supports justice and encourages convictions for rape.

In her concluding comments, Professor McGlynn writes:

‘First, there is no justification for singling out the offence of rape for special treatment. There are many stigmatic crimes: indeed that is one of the reasons for labelling an activity criminal. Secondly, while parts of the media may be irresponsible, this alone cannot justify limits on media freedom which may impinge on its ability to report issues of public interest and attempts to catch the public’s attention. Similarly, and thirdly, it may be that the difference between suspicion and guilt are not as apparent as they should be to some people. But this does not include all people, and it would be dangerous indeed if public debate could only proceed at the level of the least able. There is, therefore, no basis on which to single out the offence of rape. The final lesson, and perhaps the most important conceptual message to be drawn from the analysis in this article, is that privacy rights, the mainstay of justifications for reform, are generally not accorded greater weight than freedom of expression, when open justice and media freedom come into play. If the media are to be able to report matters of important public interest, such as rape cases, the choice of method of doing so, often likely to include the personal details of a defendant, is an important element of media freedom and open justice.

It isn’t just academics. Police and legal experts are also of the belief that anonymity for defendants will impact on justice for victims and survivors. Responding to the Stuart Hall case, Lancashire Police confirmed that naming the suspect helped survivors to come forward, leading to his conviction.

The cases like Stuart Hall’s bear out the argument for naming defendants over and over again. Rochdale, Worboys, Gordon Rideout are all cases where naming the defendant(s) has encouraged survivors to come forward, report and secure convictions. Without the ability to name these defendants, without women seeing the reports and feeling that finally, they are able to come forward, these men probably wouldn’t have been convicted. We all know, after all, how often the police knocked back women reporting Worboys, delaying justice as he continued to rape. How often the girls in Rochdale were ignored.

And I’m sure we can all agree that we are glad these serial rapists have been convicted and put into prison. I’m sure we can all agree that we would not have wanted anonymity for rape defendants in those cases – anonymity that may have prevented the cases progressing. And yet this is what those calling for anonymity are leading us towards.

But unfortunately it doesn’t matter how much research you quote, how many case studies you give and how many experts you refer to – the belief that anonymity for defendants is necessary sticks. Why? Well, the argument against naming defendants lies in the belief that a rape accusation ruins lives. But it is something else too. It is the belief that has developed that somehow false accusations are equal to being raped, and that false accusations are common. We know the latter isn’t true and in fact false accusations of rape are rarer than false accusations of other crimes. And, let’s face the facts. Being accused of rape is not the same as being raped.

Rape can ruin lives. It does ruin lives. It can lead to depression, PTSD, it can leave women with STDs that impact their physical health or their fertility. The impact of rape is far reaching, and can go on for years. Each woman or girl will respond differently to the violence committed against her and not everyone will feel the same long-term impact. But the fact is rape isn’t just a one occasion thing that happens and then is done with. And it is astoundingly, terribly common. The BCS estimates there are between 60,000 and 90,000 rapes in the UK every year. That’s 60,000 to 90,000 people every year who are living with the devastating impact of rape.

It simply is not equal to false accusations of rape. It certainly is not equal to being accused of rape. And let’s remember that most men who are accused of rape actually committed the crime. In fact, for the handful of cases that make it to court, 63% of defendants are found guilty (the conviction rate from incident to guilty remains at 6.5%).

Of course I know that to be falsely accused of rape can ruin lives too and I appreciate that. But – and there is a but – we only have to look at our popular culture that celebrates, lauds, welcomes and supports men who have been found guilty of rape or domestic abuse to know that men who abuse women aren’t automatically placed beyond the pale. It’s embarrassing just how much our culture is happy to boost convicted rapists and abusers, whilst hounding and attacking their victims.

The calls for anonymity ignore the reality of what rape is. It places making a rape complaint on the same level as being raped – suggesting that one is as damaging as the other. It argues that rape defendants are victims too, victims of women who have a legal right to make a rape complaint. They’re not. They are defendants. They have been accused of rape. They are not victims.

The calls for anonymity ignore the overwhelming and repeated evidence that naming defendants is good for justice. And that is what matters in the end. Justice. There is no convincing argument out there that supports anonymity for rape defendants. There isn’t. Each one of the arguments ignores the rights of victims and survivors and the voices of victims and survivors. And that isn’t good enough.

Wednesday, 11 September 2013

I’ve been thinking about two rape myths today, and what they mean for our understanding of rape in and out of the courtroom.

The first myth is the idea that there is a ‘correct’ way to respond to being attacked, and that response is to scream. And the second is that a if the jury acquits a man accused of rape, the accuser is immediately guilty of the crime of ‘false accusation’ or perverting the course of justice – despite not being found guilty in the law courts.

The ‘she didn’t scream’ myth is a persistent one. It’s the belief that a woman or girl would always scream or fight back if they were attacked, and that if they didn’t scream or fight back, then there was no attack. It is based on the idea that ‘rape is the worst thing that can happen to a woman, and therefore a woman would do everything in her power to stop it’. Responding to this statement, CWASU writes on their rape myths page:

Many women assess their attacker, and make moment by moment decisions about their survival. In many circumstances, women being sexually assaulted fear for their lives. When rapists have a weapon, or threaten the victim, most will strategise for their own survival by not unduly alarming or aggravating their attacker; they follow his instructions in order to stay alive, and this may include not making a noise or resisting. Being raped is not worse than being dead or permanently injured - opting to submit is a rational decision, made in a context where there are very few choices or options.

Some women may scream and fight. Some women may freeze, from fear or because they believe it may keep them safe from additional, physical violence. No one should apply a moral judgement to either response. No one should tell a woman that she responded ‘the wrong way’. And yet, we hear this all the time. Women who scream may find themselves told they ‘put themselves in more danger’. Women who freeze are told they ‘should have fought back’.

One of the problems I see here is our skewed understanding of consent. We see consent as the ‘absence of a no’, not the presence of an ‘enthusiastic yes’. Freezing and not screaming is not an indication of consent. Consent does not rely on silence, and the fact we continue to believe it does leads to the rape myth that if she didn’t vocalise no, she must have meant yes. This myth then leads to women blaming themselves for not saying no.

‘It was something that I felt had happened to me and I didn’t understand – I grew up thinking that I was in the wrong and that I should have fought and should have shouted no, and I didn’t. It was only when I started reading about freeze response that I realised that’s exactly what happened to me. That’s how I felt, I couldn’t move and I couldn’t shout or scream.’

Freezing and silence is not an indicator that no assault happened. It is a survival tactic and it is a normal response to being attacked. It should be respected and understood to be so.

Every time we repeat the myth that there is a correct way to respond to rape, then we are telling women who don’t respond that way that they are to blame, that they were in the wrong. As with every single rape myth out there, it moves the focus from the perpetrator’s behaviour onto the woman’s. It says that it is up to the victim to behave in an approved manner, and that her response is then ‘proof’ of her innocence or guilt. We ignore the responsibility of the perpetrator not to rape, we ignore that it is up to him to prove that the rape didn’t take place. It is his behaviour that should be under scrutiny and yet time and time again we return to the woman’s actions.

The CPS has started to challenge the defence that if a woman didn’t behave in a pre-approved manner, then it wasn’t rape. In their guidelines on rape myths, they write:

If she didn’t scream, fight or get injured, it wasn’t rape.

Implications:

•Disbelieves and re-traumatises victim•Invalidates the experience of the victim•Discourages him or her from seeking help

Facts:

•victims in rape situations are often legitimately afraid of being killed or seriously injured and so co-operate with the rapist to save their lives;•the victims perception of threat influences their behaviour;•rapists use many manipulative techniques to intimidate and coerce their victims;•victims in a rape situations often become physically paralysed with terror or shock and are unable to move or fight; and•non-consensual intercourse doesn't always leave visible signs on the body or the genitals.

The CPS is right. Accusing a woman of not responding in the ‘correct’ way to rape invalidates the victim, brings back trauma and tells them that they shouldn’t report because no one will believe them or respect their experience. And so the terrible cycle continues where reporting rates stay low, and those who do report risk being disbelieved, and the rape myths infiltrate the public imagination and the conviction rate stays low.

That’s what makes this myth so dangerous.

The second myth I want to talk about is on how when a man is found not guilty of rape, the woman is found guilty in the court of public opinion of making a false accusation.

Making a false accusation of rape is a serious crime which results in a jail term if an individual is found guilty. It is perverting the course of justice.

If you believe in the principle that everyone is innocent before proven guilty, then you MUST extend that right to women who make a rape complaint too. They are innocent of the crime of making a false accusation unless the courts prove otherwise.

Here’s an infographic of false accusations against incidents of rape:

It really seems to confuse people, the idea that the principle of innocent before proven guilty applies to women who make rape complaints too.

A not guilty verdict of rape does not equal a guilty verdict of false accusation. The belief that it does fosters the rape myth that false accusations are incredibly common and rape is rare. We know this is not true. According to Keir Starmer, in the period of 17 months there were 5,6751 prosecutions of rape, and 35 prosecutions for false accusations of rape. In the same period, there were 111,891 prosecutions for domestic abuse and 6 for false allegations of domestic abuse. Every year, according to the BCS, there are 1.2 million incidents of domestic abuse and 500,000 incidents of sexual assault – up to 90,000 of which are rape. False accusations are incredibly rare and rape is incredibly, terrifyingly common.

Last night I was talking with a friend of mine about these rape myths. We said we both believe that in the future, perhaps in the next generation, we will look back at society today in horror. We will be horrified that we were a society that allowed rape to happen. We will be ashamed that our response to rape was to find ways to blame and accuse the victim. It will be as ridiculous and embarrassing as witch burning or other historical disgraces. Our grandchildren will look at us and ask how we dared to allow this, how we dared to tell a woman that she should have screamed, she should have said no, that she is guilty of a crime she hasn’t been convicted of because she made a rape complaint.

I believe this will happen because things are changing, and they are changing because of feminists. Two years ago, when a group of men group raped a 12 year old girl and they got out of jail on appeal because the judge said she was sexually experienced and wanted sex, there was silence. This year, when a lawyer called a 13 year old rape survivor ‘predatory’ and the judge gave her rapist ridiculously low sentence, David Cameron got involved and action was taken against the lawyer. Feminists didn’t get any credit despite Everyday Victim Blaming leading the march on this case, but at least there was uproar. At least people said it wasn’t ok to victim blame a child.

Things are changing. Feminists are leading this change. We are having an impact. We are facing a helluva backlash as a result. But the day when we are ashamed of our attitude to rape and survivors is coming. It is coming.

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Sian Norris is a novelist, journalist, short story writer and poet. Her first book, Greta and Boris: A daring rescue was published in 2013 by Our Street. She is currently working on a novel based around Gertrude Stein's circle, which in 2016 was long-listed for the Lucy Cavendish prize. Sian's the co-editor of the Read Women project and the founder and director of the Bristol Women's Literature Festival. Her non-fiction has been published in the Guardian, the Independent, the New Statesman, 3am magazine, Open Democracy and more.